U.S. Consuls Already Have The Tools To Discriminate In Visa Decisions

Enrique de la Osa / Reuters
People wait to apply for visas outside the U.S. Interests Section (background) in Havana on May 22, 2015.

It’s no secret the Trump administration has been doing all it can to restrict and control immigration, in particular from certain Muslim-majority countries. The conversation that’s been covered in the media and played out in the courts has concerned immigration leading to permanent residency, but that is only part of the overall immigration picture. What about the tens of millions who seek to come to the U.S. on a temporary basis for business, study or pleasure each year?

For an administration that wishes to restrict the flow of certain classes of foreigners into the U.S., the issuance of non-immigrant visas is much easier to control and scarcely requires new legal measures. The mechanisms for restricting non-immigrant visas have always been there.

I give you Sections 214(b) and 222(f) of the Immigration and Naturalization Act (INA), the perfect tools for keeping non-immigrant visa decisions out of view of the public and even of the families of those affected by the decisions.

Section 214(b) of the INA instructs consular officers that non-immigrant visa applicants shall be refused as ”intending immigrants” (someone who “intends” to overstay their visa and remain in the U.S. permanently) ... unless they can convince the consul that they are not. It has always been the most common reason for saying no to anyone hoping to come to the U.S. for a temporary stay. It can also be a thin screen for the biases that consuls bring with them to the visa window, where they conduct dozens and sometimes over a hundred interviews a day, deciding individual fates based not on ”extreme vetting” but on little more than first impressions.

Let’s consider a hypothetical scenario in which a woman comes to the visa window after two prior refusals. Let’s say the consul who is about to interview her opens up the refusal notes that describe the applicant as young, unmarried and likely a sex worker. What would the interviewing consul do? The likely course would be for the consul just to confirm the earlier refusal unless something significant had changed.

Let’s say, however, that the young woman implores the consul to have another look. She has with her a CV showing that she is completing her doctorate in philosophy. She is going to the U.S. to complete her dissertation. She has copies of published papers, talks like an academic and is able to describe her dissertation research. Would the interviewing consul override the earlier refusals?

This is a hypothetical scenario, but it’s not far-fetched. Something rather like this confronted me when I did my time on the visa line as a first tour foreign service officer (FSO) many years ago. I knew well the instruction from ConGen, the crash consular training course that all FSOs go through: “When in doubt, 214(b) the applicant.” For consuls, 214(b) is a verb, shorthand for “just say no.” I chafed at that instruction when I first heard it, and I still do. As a woman who herself once worked hard on a dissertation, I leave it to the reader’s imagination to divine what I did when an applicant similar to the hypothetical one I just described faced me on the other side of the visa window.

For anyone of an authoritarian bent who doesn’t have what it takes to become an authoritarian on a larger stage, the role of consul could be an attractive career choice.

I moved off the visa line long ago, but I’ve recently had cause to remember that people’s lives are made or destroyed at the visa window. Three cases in particular come to mind from my three years at the U.S. Embassy in Kazakhstan, where my work included outreach to the LGBT community.

The first was an out gay couple being threatened on social media. The couple went underground for several months but then resurfaced in the U.S. on tourist visas. They applied for and received refugee status in the U.S. If they had said a word during their initial visa interviews about being gay and under threat, the consul very likely would have refused them as 214(b) ”intending immigrants.”

The second case was that of a transgender woman who wanted to visit the U.S. with her common-law husband. She worried what a consul would think when she presented a passport showing her as male. I told her Americans celebrate all letters of the diversity rainbow and that she should go as her genuine self to the interview. She ignored my advice. She cut her hair, put on a suit and tie, lowered her voice and got her visa. She later crossed into Canada, where she applied for and got refugee status.

The third case was that of a 19-year-old transgender woman who had been expelled from high school a year before graduating. Intelligent and with a supportive family, she wanted to complete her education in the U.S.

I’ve told this woman’s story elsewhere, but in brief, she followed my advice and went to the visa interview as her genuine self. Her visa was refused. She tried a second time after an inquiry from Congressman Peter DeFazio. Refused again. She tried once more, this time after inquiries from Sens. Tammy Baldwin, Ben Cardin and Susan Collins. A college acceptance, winning scholarship essay and letters of recommendation made no difference to consuls who didn’t give them a glance. Refused a third time.

Later, we learned 14 other Kazakhstani students accepted by the same college had received visas. In fact, this young woman was the first student since 2010 to be accepted by that college and refused a visa.

This raises a disturbing question. What if 14 students had received visas and only the student who is Jewish did not? Or Arab? Or a woman? Or black? Were the 214(b) refusals just cover for the consuls’ prejudices, a statement that the way to overcome 214(b) is to be someone else (someone who is not Jewish, not a woman, not Arab, not black or not transgender)? Could the prevailing anti-transgender winds from Washington in the summer of 2017 ― the time of presidential tweets calling for a ban on transgender persons in the military ― have affected the refusal decision?

And what happens if anyone questions a 214(b) refusal? Nothing. There is no appeal process. The records of the interview are sealed and declared confidential by Section 222(f) of the INA. Together, Sections 214(b) and 222(f) can serve as cover for any and all visa decisions no matter what the basis for those decisions.

ConGen teaches new officers that being a consul is one of the most powerful positions in the Department of State ― powerful in the sense of having a direct, palpable influence on the fate of individuals and families. It is a power invested in entry-level FSOs and their supervisors, a power that very few FSOs again experience in their careers unless they rise to the top of the diplomatic service.

Which brings me back to the anti-immigrant rhetoric of the current administration. Could changing the direction of the prevailing immigration winds coming from Washington be sufficient to change the way in which consuls make visa decisions? Just as with U.S. society at large, consuls reflect the full range of our current polarized political discourse. For those who sympathize with the policies of the Trump administration on immigration, increasing the 214(b) refusal rate would be a simple matter of “just saying no″ in full confidence of never having to answer for that decision. If consuls hold negative views toward any minority group, they can incorporate that prejudice into visa decisions without ever having to justify the decision to anyone.

I remember many consuls from my time on the visa line who were educated and caring citizens of the world, striving to do a difficult job fairly and equitably. Still, for anyone of an authoritarian bent who doesn’t have what it takes to become an authoritarian on a larger stage, the role of consul could be an attractive career choice.

The mechanisms for restricting non-immigrant visas have always been there.

One must also wonder about the reverse case, in which a consul inexplicably says yes. In recent days, we are led to ponder the case of the president’s wife, Melania Trump. As reported by The Washington Post, she came to the U.S. on multiple H1-B non-immigrant work visas in the 1990s before receiving immigrant status under the elite EB-1 “Einstein visa” program.

What was going through the minds of the consuls who said yes to Melania not once but multiple times? Was there nothing in her file hinting she might be an “intending immigrant,” or did the glamour of a supermodel at the visa window blind them? Did those same consuls say yes as willingly to the less-glamorous applicants who appeared at their windows?

My advice to those who asked me about coming to the U.S. for a temporary stay was always to “come as you are” to visa interviews, to be completely open and honest. Now, I’m just silent, because I remember what happened in Kazakhstan, when the applicant who wanted to study was refused a visa likely just because she is transgender, and what happened to the others who covered up their status and got visas that allowed them to get refugee status once in the U.S.

To all who have received a 214(b) visa refusal from a U.S. consul, I am with you in your grief and in decrying a visa process that is anything but transparent ― a process that at times may be little more than cover for the preconceived notions and even prejudices of those charged with implementing it.

In the age of Trump and anti-immigrant rhetoric, I fear those refusals will be even more common with the refusing consuls safe in the knowledge that the reasons for their decisions are protected behind the impregnable 222(f) wall of the INA.

Robyn Alice McCutcheon is a foreign service officer who has served in Washington, D.C.; Astana, Kazakhstan; Bucharest, Romania; Moscow; and Tashkent, Uzbekistan. Today she is a senior watch officer in the State Department’s Nuclear Risk Reduction Center. Although McCutcheon is employed by the Department of State, the views expressed in this column are strictly her own and do not necessarily represent the views of the Department of State or the U.S. government.